loss of self-control/provocation essay Q

Question 1

which section of which act has abolished provocation?

Answer 1

S.3 HA replaced by LOSC in the C&JA

Question 2

what was the rationale of provocation?

Answer 2

that those who kill in hot blood do not deserve to be labelled murderer

Question 3

What was the historic crime of provocation

Answer 3

allowed to defend ones honour- this was the justification

Question 4

what did Hayward argue the use of provocation as a defence was

Answer 4

a defence for human frailty- therefore an excuse rather than a justification

Question 5

Why did Wells say that both the view of excuse/ justification are problematic

Answer 5

it sends an unappealing message condoning anger overs self-restraint

Question 6

Why is there a need for the partial defence

Answer 6

due to the life sentence attached to murder

Question 7

What was the first problem of provocation (Doughty)

Answer 7

the slightest incidents were enough for the defence to be left to the jury, this was a structural failing of S.3 HA- Doughty- suffocated child due to their crying

Question 8

What happened in Doughty

Answer 8

The judge was wrong to say that the crying did not fall within the definition of a provocative act under the old defence of provocation, it was a defence for the jury to decide. As the defendant neither feared immediate violence nor had a justified sense of being seriously wronged, it is highly likely that a judge could not allow today’s modern equivalent of provocation: loss of self-control, to be raised as a defence. If it was allowed, the jury would be entitled to find the act unreasonable.

Question 9

What was the second problem with the old defence of provocation?

Answer 9

It was rooted in ‘sudden’ loss of self-control, and not readily acceptable to ‘slow-burn’ cases where e.g. an abused partner of child reacted to cumulative provocation by killing the abuser.

Question 10

Case demonstrating rooted in sudden loss of control

Answer 10

The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him. He died six days later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive throughout the marriage.
The definition in R v Duffy [1949] 1 All ER 932 as “sudden and temporary loss of control” is still good law as it is a readily understandable phrase. However, in cases of abused wives, the harmful act is often a result of a “slowburn” reaction, rather than immediate loss of self-control. The longer the delayed reaction of provocation and the stronger the evidence of deliberation, the less likely it becomes for the defence to succeed.

Question 11

What is the last problem with provocation?

Answer 11

The ‘reasonable man’ acquired a dubious set of precedents allowing him to be invested with the very characteristics (eg mental abnormality) that made D ‘unreasonable’.

Question 12

Case demonstrating the reasonable man acquired a dubious set of precedents

Answer 12

Smith (Morgan), The appellant, an alcoholic suffering from a depressive illness, stabbed his drinking partner after a row over some stolen tools. The House of Lords preferred the dissenting opinion in Luc Thuet Thuan holding that mental characteristics can be taken into account in assessing both the gravity of the provocation and the reaction of the defendant in relation to a reasonable man. The appeal was therefore dismissed.

Question 13

What does S 54(6) state

Answer 13

the judge decides if there is sufficient evidence to leave the defence to the jury unlike under S 3 HA, were the defence would be presented if there was evidence that D was provoked. Therefore, the judge may withdraw the defence if no reasonable jury could accept the defence on the evidence given

Question 14

Why is there a reluctance by judge’s to withdraw the defence

Answer 14

as it may be appealed on those grounds

Question 15

Cases where there was an appeal due to the fact the judge failed to leave the defence to the jury

Answer 15

Barnsedale- Queane and Jewell

Question 16

What is the issue where the judge leaves the defence to the jury despite the fact it would be his prerogative to withdraw it

Answer 16

acknowledges a willingness to have the defence accepted and this will be communicated to the jury

Question 17

Why does the judge have a troublesome task in deciding whether or not to leave the defence to the jury

Answer 17

the judge must consider the quality of all the evidence, he is not obliged to instruct but must be aware that the jury may take a different view to him on the evidence given

Question 18

What did Gurnipar say about the difficulty of the task of judges in deciding whether or not to leave the defence to the jury

Answer 18

provocation requires some evidence while LOSC requires sufficient evidence as to whether control was lost; if there was a qualifying trigger; and whether the normal person…., therefore, this is a higher test, so the defence is less likely to be left to a jury under the current defence

Question 19

Where was the exclusionary model discussed

Answer 19

Clough: Honour killings, partial defences and exclusionary conduct model

Question 20

What did Clough say the exclusionary conduct model is

Answer 20

certain things are excluded from the defence e.g. S56(6)(c) the court must disregard a thing said or a thing done that constitutes sexual infidelity

Question 21

Why does Clough argue the exclusionary model is problematic

Answer 21

not necessary given the other safeguards which are in place e.g. the judge’s prerogative to withdraw the defence, or revenge killings are excluded

Question 22

Where have these other safeguards been used successfully

Answer 22

in other categories considered as repugnant such as honour killings,

Question 23

What does Withery argue about the exclusionary model

Answer 23

it gives the message that sexual infidelity is more morally repugnant than honour killings.

Question 24

However, is sexual infertility truly excluded?

Answer 24

Clinton- while sexual infedilty alone cannot be relied up as a trigger, where it forms part of the context it must considered to allow for a just evaluation, in such circumstances the prohibitions does not operate to exclude it

Question 25

What did Clinton say it was not practical to do regarding sexual infidelity

Answer 25

not practical to compartmentalise and disregard any evidence regarding sexual infidelity. the purpose of the exlcusion is to. prevent the misuse of the trigger as it was thought to have been misused in provocation

Question 26

in regard to honour killings what was the basis of provocation

Answer 26

the basis of the defence concerned honour. Smith (Morgan) who felt their honour had been violated

Question 27

Are honour and outrage part of LOSC

Answer 27

no they are distinct from the defence today- however the problem is that these concepts differ between different cultures and religions

Question 28

Why have honour killings not been excluded

Answer 28

because unlike sexual infedilty is is expected that jurors will be relied upon to exclude such circumstances

Question 29

Why does Dogan think honour killings have been misinterpreted

Answer 29

they are not all about revenge. Each jury should be allowed to consider each case as killings stem from more than just revenge, but betrayal, honour and shame and desperation but these concepts are often alien and inexplicable to the Western jury

Question 30

What happened in Hussain

Answer 30

D was given a more lenient sentence as had been proactive conduct which would have been particularly offensive to someone of D’s religion- however it is dangerous to import such stereotypes

Question 31

Why is it possible for the battered woman to access the defence of LOSC

Answer 31

no longer requires a sudden loss of control which accommodates for the cumulative/slow burn cases

Question 32

Although the battered wife may still access the defence what still must be shown

Answer 32

still hurdles in that it must still be shown circumstances of extremely grave character and a sense of being seriously wronged- the jury could decide against

Question 33

what happens if there is a lapse of time between the act and the killing

Answer 33

the defence will be weakened

Question 34

Where is the problems in the cases of battered wives

Answer 34

the reaction may not follow from the last incident, therefore the last incident may not appear serious enough to provoke such a reaction. However, her assessment is based on the past events, and she anticipates the capacity for violence, therefore in relation to the actual incident from which the killing stemmed would the jury regard it as an over reaction?

Question 35

What did Faigman, Browne and Coughun argue about overreaction

Answer 35

no overreaction as battered women have a different perception of threats based on their previous experiences and they are in a state on constant fear knowing their partner has the ability to kill them

Question 36

what does Edward argue about the new defence and the possibility for battered spouses failing within it

Answer 36

it leaves the woman at the mercy of the jury- do they jury feel that there is circumstances of extremely grave character and did she have a sense of being seriously wronged?

Question 37

What did DPP v Camplin say

Answer 37

makes allowances for age. the law should not expect and old head on young shoulders so extra allowances should eb made as to age, but more doubtful about whether sex should be taken into consideration (AG Jersey v Holland, Lord Hoffman)

Question 38

What did Lord Morris say regarding sex in Camplin

Answer 38

sex may be important to charactertistics and capacity for self-control giving example to call a reasonable man compared to a reasonable woman a whore. However, counsel in Bedder maintained to preclude the jury from considering where the woman was pregnant

Question 39

Previously how was sex considered

Answer 39

offered that sex may be taken into account because women are more highly strung, emotionally fragile and less able to control themselves

Question 40

What is the current view of sex under C&JA

Answer 40

Norrie, unclear as to what role sex actually plays but sex may be relevant to the circumstances e.g. for example women are more at risk of domestic abuse

Question 41

Is LOSC more restrictive than provocation

Answer 41

yes e.g. sexual infidelity is now disregarded.

Question 42

Problem with extremely grave and a sense of being seriously wronged

Answer 42

an objective test which is set at a very high bar. Although filter about absurd trivia and normal irritations- is this too severe and legalistic?

Question 43

Has the reform been successful?

Answer 43

Piecemeal reform- would a wholesale reform of homicide be more effective?